With the best of intentions, the dissenters inside the ACLU have staked out a position that will harm disempowered racial and religious minorities if it succeeds or persists.
The Historical Record
Bygone ACLU defenses of hateful right-wing speakers have never enabled or even preceded a spike in political power for American Nazis or members of the Ku Klux Klan.
Skokie didn’t portend a descent into fascism.
But those principled defenses of speech and the precedents that they set did repeatedly lay critical groundwork that helped opponents of needless warmaking and racism.
ACLU Senior Staff Attorney Lee Rowland noted one example back during the 2016 campaign, amid calls to charge Donald Trump with incitement for violent talk at his rallies. She referenced a case that the ACLU of Ohio had litigated for a bigot years earlier.
“The Brandenburg test is named after Clarence Brandenburg, an avowed racist convicted for holding an Ohio KKK rally in the late 1960s. The Supreme Court overturned his conviction, despite the rally’s talk of ‘revengeance’ against Jews and black people, and held that ‘abstract advocacy of force’ was protected speech that did not amount to incitement,” she explained. “A few years later, in a short opinion relying entirely on Brandenburg, the Court struck down another state conviction—this time of an anti-war protester who a cop overheard yelling, ‘We’ll take the fucking streets later.’ The court again held that advocacy of generic illegal action was not incitement.”
Anti-war protesters weren’t the only disempowered minority to benefit from Brandenburg. “Perhaps the high water mark for incitement law is NAACP v. Claiborne Hardware, in which the court upheld civil-rights icon Charles Evers’s right to deliver ‘emotionally charged rhetoric’ at a 1966 rally,” she explained. “Evers was advocating that a crowd of supporters boycott racist, white-owned businesses, and during his passionate speech, he promised that ‘We’ll break the damn neck’ of anyone who broke the boycott. Citing Brandenburg once again, the court held that there was no evidence ‘that Evers authorized, ratified, or directly threatened acts of violence.’”
But for the ACLU’s successful defense of an abhorrent bigot in Brandenburg, one wonders how many more anti-war protesters and civil-rights activists would’ve been imprisoned. Thank goodness anti-racists who found it distasteful did not prevail!
Elsewhere the ACLU has noted other cases that vindicate its bygone representation of bigots:
… in the 1949 case of Terminiello v. Chicago, the ACLU successfully defended an ex-Catholic priest who had delivered a racist and anti-semitic speech. The precedent set in that case became the basis for the ACLU’s successful defense of civil rights demonstrators in the 1960s and ‘70s. The indivisibility principle was also illustrated in the case of neo-Nazis whose right to march in Skokie, Illinois, in 1979 was successfully defended by the ACLU. At the time, then ACLU Executive Director Aryeh Neier, whose relatives died in Hitler’s concentration camps during World War II, commented: “Keeping a few Nazis off the streets of Skokie will serve Jews poorly if it means that the freedoms to speak, publish, or assemble any place in the United States are thereby weakened.”
What Happened in Charlottesville
The ACLU has been subject to criticism for representing the organizers of the alt-right gathering in Charlottesville where a counter-protester was killed by a white supremacist. That murder was abhorrent, and a great tragedy for the loved ones of the deceased; and the ACLU is under no principled obligation to represent anyone if they believe that their real intention is to perpetrate violence; but the ACLU had no reason to anticipate that one of the alt-right protesters would run a woman down with his car.